“We left just before eleven-thirty,” he said, giving Laura one of his broadest smiles, apropos of nothing in particular. “I had to get to work by twelve and wanted to change clothes. Kimo took me home and waited for me, then he drove me to the plantation office. I run dispatch there from midnight to eight.”
“When did Kimo drink his last beer?” Laura asked.
“I killed mine on the way home. Kimo was still drinking his when he dropped me off at the office. I remember, because he had the can in his hand when he pulled away. He waved it at me.” Kevin raised a hand holding an imaginary can in illustration.
Laura was pleased at her decision to interview Roger and Kevin. The description of the drinking definitely opened up a novel approach to the trial. There were also some real problems involved in such an approach. To use it, she would have to have Roger and Kevin testify. Still unsure of Roger, she was convinced Kevin would do well on the witness stand. Still, she had not lost all of her reservations.
How will Judge Wong react to a description of a night’s drinking from two participants in the drinking? she wondered.
Chapter 8
Court day had suddenly arrived, and Laura had the exam jitters. Having prepared and prepared, and having convinced herself everything was under control, she was now certain she would go blank in the courtroom. She weighed the pluses and minuses while sitting in the courtroom following the judge’s entrance and while waiting for the completion of the preliminaries.
In spite of everything she had been told, Judge Wong did not look like a plus. He was completely hairless. His round face, round bald head and round eyes were accentuated by large, thick glasses. She could see why Bill Kuroyama had called him Old Owl Eyes. In the few times she had spoken to Judge Wong, and now on the bench, she had never seen him smile. She wondered how Kimo must be feeling about this grim, robed figure who could make such a significant impact on his life.
As for Kimo, himself, he was definitely a plus. He was taking the proceedings seriously, and now he was dressed as presentably as Laura could have asked for. She had cleared up the ambiguities in his earlier interviews. The police had found an empty beer can on the floor of the pickup, which was the other reason why they had given him a blood test.
With nothing in the can, they had not added an “open container of alcohol” to the charge. Laura knew the prosecutor would bring it up. That was hardly a plus, but Laura had plans for the empty can. When Kimo told her about it, she had thought it was just possible it could be used to advantage. She had made a note on her legal pad to remind her to talk to the others about it. More and more she was realizing how important it was for an attorney to have alert and knowledgeable colleagues.
Sid had been right about the other matter he had brought up. Kimo had had brushes with the law. Two of them. Technically, Kimo had also been right. Those were two minor offenses, trespassing and loitering, both in California. There had been no formal charges, and no record. Laura had heaved a sigh at that. Other than this arrest, Kimo was clean. That, most certainly, was a big plus. The biggest plus was Emil Bautista. Following her meeting with the prosecutor, she had talked to him twice on the phone. He sounded businesslike but friendly. While he would press for conviction, as expected, he was also going to ask for a suspended sentence.
When Laura told Kay and Sid about the prosecutor’s announced plans, Sid was quick to point out he really did not have much choice. First offense DUI’s almost inevitably were treated in that fashion if there was a trial and there were any extenuating circumstances. Kay broke in. “My, how quickly we forget. What do you think Ikeda would have asked for if he were still here?”
“Don’t remind me. Just be glad you’re dealing with Emil, Laura.”
And she was glad. He had even surprised her by asking her out to lunch when he called the second time to, as he put it, “talk over the case.” Reluctantly, she had had to turn down the invitation because she had scheduled an interview with the householder, to whom Kimo had gone following the accident. Laura had hoped for a third phone call, but it never came.
Today Emil quickly presented the case for the prosecution. In answer to the call at eleven-forty-eight, two patrolmen had arrived seven minutes after being summoned. They had questioned Kimo, had smelled alcohol on his breath and found an empty beer can in the pickup. On the basis of that, and the evidence an accident had occurred, they had taken him to the station and administered a blood test. Finding an alcohol concentration above the level considered to be proof of impaired driving faculties, they then arrested and charged him. The prosecutor emphasized Kimo had in fact been driving while intoxicated, and requested the judge to find him guilty as charged.
Kay, who had been sitting at the defense table, gave Laura a reassuring pat on her arm as she rose to present the defense’s argument. Laura needed it. Even though she had taken a sip of water before getting up, her mouth was dry. She had planned to keep her speech to a minimum, and Emil’s brief presentation reinforced her decision. She quickly went through her major points. Kimo had been drinking, yes, but there was considerable question about the accuracy of the blood test. There was no open container of alcohol in the car.
As soon as the accident occurred, and Laura stressed there was no evidence the accident had indeed been his fault, he had not tried to leave the scene. Instead he had taken all possible steps to help whoever might have been injured. With witnesses to indicate Kimo’s faculties were unimpaired, and with his own responsible actions in the situation as further testimony to his sobriety, Laura was asking the case against the defendant be dismissed.
Kay smiled at Laura as she found her way back to the defense table. Kimo whispered, “Great, Laura.”
As expected, Judge Wong turned down the request for dismissal, and the first prosecution witness came to the stand.
***
Even by the high standards Laura maintained for herself, she felt she had done well so far. She had shaken off most of Sid’s pessimism, which he had voiced as she and Kay had gone off to court. “If anything can go wrong, it will,” had been his parting remark.
As they walked the short three blocks to the court, Kay had said, “Even though he’ll never admit it, Sid’s really superstitious. I guess all Chinese are. If it isn’t genetic, they get it in their mother’s milk. He always expects the worst and plans for it in order to ward it off. It’s like show business, where they tell you to go out on stage and ‘break a leg.’ He’s afraid wishing you good luck will bring you bad.”
The two policemen who had been the first witnesses had been clear on where they stood. They had followed the rule book. There were unmistakable signs of an accident. There was the smell of alcohol on the driver’s breath. There was an empty beer can on the floor of the defendant’s pickup. Taken together, these were sufficient reasons to take him to the station for a blood test. The only additional element brought out by the prosecutor was the defendant’s claim he had killed someone in the accident. Since there was no corpse to be found at the scene, both policemen indicated this rather strange story had influenced their decision to test Kimo for a possible DUI.
Laura had no difficulty bringing out Kimo’s apparent sobriety. He had not staggered. He had been coherent. He was concerned about whoever might have been injured in the accident. There was nothing to indicate reckless or even negligent driving. The damage to the truck indicated he had been traveling well under the speed limit for a residential area. The damage could have been the result of someone running into the vehicle rather than the other way around. Again—there was no open container of alcohol in the pickup.
The high point of the morning came after adjournment. Emil came over to the defense table and asked Kay and Laura to lunch. Kay begged off, pleading work back at the office. Surreptitiously, she nudged Laura, who needed no nudging.
***
“How’d it go?” Sid asked, when Kay arrived back at the office at noon. He was standing next to Leilani’s desk. She looked up at Kay with a worri
ed expression on her face.
“Couldn’t be better,” Kay said, smiling. “Not only did Laura do a bang-up job of presenting the case and cross-examining, the prosecutor even invited her to lunch.”
Leilani’s anxious look changed to a broad smile. “Do you think he’s interested?”
Kay and Sid broke into laughs. Kay said, “I wondered what you were going to do with those matchmaking instincts, Leilani, since you talked me into marrying Sid.”
“Laura’s a nice girl,” Leilani went on quite seriously. “Emil Bautista would have to go a long way to find someone to match her.”
Sid broke in, half in jest. “Is there any precedent for cases being tried where the defense attorney is sleeping with the prosecutor? Maybe we’d better ask Qual.”
“For heaven’s sake, Sid,” Kay exclaimed, “lunch at the courthouse cafeteria is a long way from the bedroom.”
Sid looked up at the ceiling. “Where did you and I first go to lunch together?”
***
The court cafeteria was noted for its bad service, mediocre food, and noisy ambience. I’m not about to complain, though, Laura thought, as she started down the food line. Besides, I probably won’t be able to eat much anyway. She settled for a cup of weak and tepid coffee and a salad consisting of runny cottage cheese, some chunks of underripe tomato and one or two additional bits of unidentifiable vegetables. These were scattered haphazardly on a bed of wilted lettuce leaves.
Emil took a bowl of stew. “I know it looks pretty sad,” he said, as they found themselves a table which had been swept clean of dishes and of nothing else, “but the stew’s probably the best thing on the menu.” They wiped off the debris left over by the previous customers with the extra paper napkins they had taken.
The talk shifted quickly to the trial.
“Think we can finish up by tomorrow morning?” Emil asked, as he sampled his stew.
“I hope so. I know Judge Wong wants us to, and we’re sure going to do our best. Right after you run in the sergeant who did the blood test, we’ll put our expert on. That should be cut and dried. Then we’ll put Fred Merritt on the stand. He’s our primary material witness. Kimo’s two buddies should be short and sweet, and Kimo shouldn’t take much longer. The worst that can happen is we’ll make it run into a short afternoon session.”
“Why do you say ‘we’? Isn’t it all your case?”
“Yes but, as I told you, it’s my first one. I’m depending heavily on Kay.”
Emil smiled. “Quit worrying. You can’t do any worse than I did on my first case. I stepped into a wastebasket when I went up to question the very first witness.”
They both laughed.
“The worst of it was my foot was wedged in it. I thought I was going to have to take off my shoe to get out of the wastebasket. The whole thing was right out of a Buster Keaton movie.”
“I’ll watch out for wastebaskets. Any other advice?”
“Uh-uh. You’re doing fine. If I have to lose a case, I’d rather lose it to you.”
Laura smiled and thought it was sweet of him to say that.
Emil added, “But I don’t think I’m going to lose it.”
Laura was unwilling to concede the case, but was not about to openly disagree. “What do you think’s going to happen?”
“It’s still too early to tell. There’s no way of knowing from Judge Wong’s expression. Talk about an inscrutable Buddha. If I had to guess, I think it will be guilty with a suspended. Then he’ll add on the usual school sessions.”
Talk strayed off to Wanakai and high school days. They reminisced over teachers, and found their views of them to be similar. Some of the instructors had been memorable, most had been nonentities. Laura was surprised at how few of them she could actually remember. Emil’s recollections were considerably poorer. A casual exploration of mutual acquaintances produced no mutual friends. Laura had been an outgoing teenager, but had established few firm bonds with others.
Emil had been almost a recluse. “I guess I was the worst grade-grubber at Wanakai High. I wasn’t really interested in learning. I just wanted the top grade in every class. I didn’t improve any as an undergraduate either. It took law school to get me over that. I was fascinated with the law. That’s when I began to study to learn and not just to get grades.”
“In high school I was too interested in boys to worry much about grades,” Laura said. “Now, when I look back at it, Wanakai High must have had some awfully low standards or some awfully dumb students. I sure didn’t do much studying, especially in my last year there. In spite of that, my grades were good enough for me to get into the U.”
“I wish I could have been that normal,” Emil said, a touch of real poignancy in his voice.
Kay suppressed a smile on seeing the two opposing attorneys return to the courtroom engrossed in close conversation. Leilani will really be all ears when I tell her about this, she thought.
Chapter 9
Laura, Kay and Kimo had just eased themselves into their seats behind the defense table when Judge Wong came into the courtroom on the dot of one o’clock. Kay lifted her eyebrows and whispered to the other two. “It pays to be on time with this judge.”
The sergeant who had conducted the blood test quickly summarized the results from the analysis of Kimo’s blood on the night of the accident. Emil probed no further and turned the witness over to Laura. Her first question was aimed at pinning down the exact time the test was taken and how long after the accident it had been done. The sergeant had written the hour and minute on the report. These added up to an elapsed time of thirty-five minutes following the phone call alerting the police to the accident.
Laura followed up the question by having him elaborate on the meaning of the test results. He stated, with no show of reluctance, how Kimo’s blood was just above the minimum indicating intoxication. When asked if there were any other signs of intoxication, he answered no and shook his head in emphasis. Asked if he had made any other tests for intoxication, the sergeant again said no and started to explain why when Laura cut him short, saying, “No further questions, your honor.”
Kay made a note on her pad to call Laura’s attention to the flaw in such a tactic. With a jury, it might have been a good one. With a judge, especially one as astute as Wong, it was undoubtedly a bad one. Since he was already well aware why no further tests were made—the law stating the blood test was definitive proof—cutting off the witness served no useful purpose.
In fact, doing so might have simply appeared to the judge as being a ploy, which it was. Other than that, Kay felt Laura’s questioning was exactly what it should have been. It was clear, concise, and to the point. She had gotten across what she had wanted to put across, how the test had shown a blood alcohol level just barely above the minimum for establishing a DUI.
After Emil had stated he had no further witnesses to present, Laura called her first witness, a professor of organic chemistry from the University of Hawaii. Both Kay and Laura had spent an hour going over the details of the blood test with him. He had made it clear from the outset he was a firm believer in the accuracy of the test when done strictly according to the book. Even so, he was willing to testify the results of Kimo’s test were well within a margin of error which could indicate Kimo was actually below the level indicating intoxication.
Kay was especially pleased at Laura’s handling of the professor’s testimony. Her questions indicated she had done considerable study of the test procedure. After having the professor describe the physiological basis for the test, she asked him several questions concerning probability statistics and the possibility of error in the administration of the test.
“What is the margin of error in this case?”
“The chances are about one out of two the defendant’s blood alcohol level was in fact below the minimum rather than above.”
Laura left it at that.
Not unexpectedly, in his cross-examination Emil had the professor point out the obverse of the c
oin. The witness agreed there was also a one out of two chance Kimo’s blood alcohol level might in fact have been higher than what was indicated on the test. Shrewdly, Emil left it at that.
Fred Merritt proved to be an excellent witness. Kay rated him as about as effective as any witness she had ever encountered. A small, bald headed haole in his late sixties, Merritt at first made no great impression. He seemed dwarfed by the witness chair which was oversized to accommodate some of the heavier witnesses with occasion to sit there.
“Could you tell us in your own words what happened on the night of the accident?”
“Sure. Sometime around midnight I heard someone knocking at the door. I live alone, you know, and I don’t much care for midnight knockings. Anyhow, I got up, threw on a bathrobe and went down to the front porch. It was raining cats and dogs. That young fellow,” with a nod of his head he indicated Kimo, “was out there looking pretty excited. He said he’d just run into someone and killed him.
“Well, you can imagine how that kind of woke me up. Even so, I wasn’t about to let someone into the house just because of a wild story like that. He said he wanted to call the police. I told him I’d do it. After I did, I came back and let him in. I figured if he was lying, he wouldn’t be about to cause any trouble with the police on the way. The poor kid was soaked. I have an old electric heater I use on occasional cool nights, and I turned it on for him. It wasn’t particularly cold, but he was soaked through. I asked him if he was sure the guy was dead, figuring we’d go out and check if he wasn’t sure. He said he was positive. Said he’d been in the service and seen his share of corpses.
“So we sat and chatted. He was pretty upset. Who wouldn’t be? I tried to calm him down. On a night like that, on one of those side streets, he could hardly be blamed for running into some darn fool walking in the road. There wasn’t even a crosswalk there. Anyhow, the police arrived pretty fast, and they went out with the kid to his pickup. I didn’t go out with them. I figured I’d just be in the way. I’d told the patrolman who came to the door if he had any questions, I’d answer them right then. Otherwise, I was going back to bed.”
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